Water Resources Development,
Vol. 25, No. 1, 159–173, March 2009
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Principles of Transboundary Water
Resources Management and Ganges
Treaties: An Analysis
MUHAMMAD MIZANUR RAHAMAN
Water and Development Research Group, Water Resources Laboratory, Helsinki University of Technology,
Espoo, Finland
ABSTRACT The aim of this paper is to analyse the coverage of the principles of transboundary
water resources management in two key bilateral treaties in the Ganges Basin. The treaties are the
1996 Mahakali Treaty between Nepal and India and the 1996 Ganges Water Treaty between India
and Bangladesh. The study reveals that both treaties incorporate several internationally recognized
transboundary water resources management principles, e.g. the principle of equitable and
reasonable utilization, an obligation not to cause significant harm, principles of cooperation,
information exchange, notification, consultation and the peaceful settlement of disputes. The
presence of these internationally accepted principles in these two treaties offer plenty of common
ground, which could serve as guidelines to promote sustainable water resources management
throughout the region.
Introduction
The Ganges basin is located at 708– 88830’ longitude east and 218– 318 latitude north. The
River Ganges rises in the Gangotri glacier in Uttar Pradesh, India, at an elevation of about
3139 m above sea level. The Ganges is the thirtieth longest river in the world. It has a
total length of approximately 2600 km and the total drainage area is approximately
1 080 000 km2 shared between China, Nepal, India and Bangladesh (Rahaman, 2008).
Numerous studies reveal that a coordinated Ganges basin management approach by the
riparian countries could promote social, economic and environmental well being
throughout the region (e.g. Abbas, 1984; Swain, 1993; Bandyopadhyay, 1995; Verghese,
1999; Ahmad et al., 2001; Biswas & Uitto, 2001; Huda, 2001; Onta, 2001; Swain, 2002;
Uprety & Salman, 1999; Biswas, 2008; Rahaman, 2008).
Recently, the riparian countries in the Ganges River basin have been cooperating and
working towards coordinated and sustainable water resources management. Two recent
bilateral treaties of the Ganges River basin are good examples of this (Biswas, 2008,
p. 153). The treaties are the 1996 Treaty between Nepal and India concerning the
Correspondence Address: Muhammad Mizanur Rahaman, Water and Development Research Group, Water
Resources Laboratory, Helsinki University of Technology, Tietotie 1E, PO Box 5200, Fin-02015 HUT, Espoo,
Finland. Email: [email protected]
0790-0627 Print/1360-0648 Online/09/010159-15 q 2009 Taylor & Francis
DOI: 10.1080/07900620802517574
160
M. M. Rahaman
integrated development of the Mahakali River (hereafter Mahakali Treaty) (ILM, 1997a),
and the 1996 Treaty between Bangladesh and India on the sharing of the Ganga/Ganges
waters at Farakka (hereafter Ganges Treaty) (ILM, 1997b).
This paper has two objectives: first, to discuss internationally acknowledged principles
of transboundary water resources management; second, to analyse to what extent these
internationally accepted principles are addressed in both the1996 Mahakali Treaty and
1996 Ganges Treaty.
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Transboundary Water Resources Management Principles
There are different principles of transboundary water resources management. This section
discusses transboundary water resources management principles that are recognized by
international convention, judicial decisions and international treaties. These are: the theory
of limited territorial sovereignty; the principle of equitable and reasonable utilization; an
obligation not to cause significant harm; the principles of cooperation, information
exchange, notification and consultation; and the peaceful settlement of disputes. These
principles form the basis of the 1966 Helsinki Rules on the Uses of the Waters of
International Rivers (hereinafter Helsinki Rules) and the 1997 UN Convention on NonNavigational Uses of International Watercourses (hereinafter UN Watercourses Convention)
(Giordano & Wolf, 2003, p. 167; Rahaman, 2009). Table 1 summarizes the relevant Articles
of some international treaties/codifications that endorsed these principles.
The Theory of Limited Territorial Sovereignty
This theory is based on the assertion that every state is free to use shared rivers flowing through
its territory as long as such utilization does not prejudice the rights and interests of the coriparians. In this case, sovereignty over shared water is relative and qualified. The co-riparians
have reciprocal rights and duties in the utilization of the waters of their international
watercourse and each is entitled to an equitable share of its benefits. This theory is also known
as the ‘theory of sovereign equality and territorial integrity’.
The advantage of this theory is that it simultaneously recognizes the rights of both
upstream and downstream countries because its guarantees the right of reasonable use by the
upstream country in the framework of equitable use by all interested parties. Principles of
equitable and reasonable utilization and an obligation not to cause significant harm are part of
the theory of limited territorial sovereignty (Schroeder-Wildberg, 2002, p. 14). This theory
has been adopted in the majority of the treaties in recent years, e.g. the 1995 Agreement on
the cooperation for the sustainable development of the Mekong River basin (Articles 4–7),
the 1995 SADC protocol on shared watercourse systems (Article 2) and the 2002 framework
agreement on the Sava River basin (Articles 7–9).
Principle of Equitable and Reasonable Utilization
This use-oriented principle is a sub-set of the theory of limited territorial sovereignty.
It entitles each basin state to a reasonable and equitable share of water resources for
beneficial uses within its own territory.
Equitable and reasonable utilization rests on a foundation of shared sovereignty and
equality of rights, but it does not necessarily mean an equal share of waters. In determining
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Relevant Articles
Principles
Helsinki Rules (1966)
UN Watercourses Convention (1997)
International Treaties
Reasonable and
equitable utilization
Articles IV, V, VII, X,
XXIX (4)
Articles 5, 6, 7, 15, 16, 17, 19
Not to cause
significant harm
Articles V, X, XI,
XXIX (2)
Articles 7, 10, 12, 15, 16, 17, 19, 20,
21(2), 22, 26(2), 27, 28(1), 28(3)
Cooperation and
information exchange
Articles XXIX (1),
XXIX (2), XXXI
Articles 5(2), 8, 9, 11, 12, 24(1),
25(1), 27, 28(3), 30
Notification, consultation and negotiation
XXIX (2), XXIX (3),
XXIX (4), XXX, XXXI
Articles 3(5), 6(2), 11 – 19, 24(1),
26(2), 28, 30
Peaceful settlement
of disputes
Articles XXVI–
XXXVII
Article 33
1995 SADC Protocol on Shared Watercourse Systems
(Article 2), 2002 Sava River Basin Agreement (Articles
7 – 9), 1995 Mekong Agreement (Articles 4 – 6, 26)
1995 SADC Protocol on Shared Watercourse Systems
(Article 2), 2002 Sava River Basin Agreement (Articles 2, 9),
1995 Mekong Agreement (Articles 3, 7, 8)
1960 Indus Waters Treaty (Articles VI-VIII), 1995 SADC
Protocol on Shared Watercourse Systems (Articles 2-5), 2002
Sava River Basin Agreement (Articles 3 – 4, Articles 14 – 21),
1995 Mekong Agreement (Preamble, Articles 1, 2, 6, 9, 11,
15, 18, 24, 30)
1960 Indus Waters Treaty (Articles VII [2], VIII), 1995
SADC Protocol on Shared Watercourse Systems (Articles
2[9], 2[10]), 2002 Sava River Basin Agreement (Part Three
and Four, Article 22), 1995 Mekong Agreement (Articles 5,
10, 11, 24)
1960 Indus Waters Treaty (Article IX, Annexure F, G), 1995
SADC Protocol on Shared Watercourse Systems (Article 7),
2002 Sava River Basin Agreement (Articles 1, 22-24, Annex
II), 1995 Mekong Agreement (Articles 18.C, 24.F, 34, 35)
Source: Adapted from Rahaman (2009).
Principles of Transboundary Water Resources Management and Ganges Treaties
Table 1. Transboundary water management principles and relevant Articles of international conventions, agreements/ treaties
161
162
M. M. Rahaman
an equitable and reasonable share, relevant factors such as the geography of the basin, the
hydrology of the basin, the population dependent on the waters, economic and social
needs, the existing utilization of waters, potential needs in the future, climatic and
ecological factors of a natural character and availability of other resources, etc. should all
be taken into account (Article V of the Helsinki Rules, 1966 and Article 6 of the UN
Watercourses Convention, 1997).1 It entails a balance of interests that accommodates the
needs and uses of each riparian state. This is an established principle of international water
law and has substantial support in state practice, judicial decisions and international
codifications (Birnie & Boyle, 2002, p. 302).
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An Obligation Not to Cause Significant Harm
This principle is also a part of the theory of limited territorial sovereignty (Eckstein, 2002,
p. 82). According to this principle, no states in an international drainage basin are allowed to
use the watercourses in their territory in such a way that would cause significant harm to other
basin states or to their environment, including harm to human health or safety, to the use of
the waters for beneficial purposes or to the living organisms of the watercourse systems.
This principle is widely recognized by international water and environmental law, often
expressed as sic utere tuo ut alienum non laedas. However, the question remains about
the definition or extent of the word ‘significant’ and how to define ‘harm’ as a ‘significant
harm’. This principle is incorporated in all modern international environmental and water
treaties, conventions, agreements and declarations. It is now considered as part of the
customary international law (Eckstein, 2002, pp. 82 – 83).
Principles of Notification, Consultation and Negotiation
Every riparian state in an international watercourse is entitled to prior notice, consultation
and negotiation in cases where the proposed use by another riparian of a shared
watercourse may cause serious harm to its rights or interest. These principles are generally
accepted by international legal documents. However, naturally, most upstream countries
often oppose this principle. It is interesting to note that during the negotiation process of
the 1997 UN Watercourses Convention these principles, which are included in Articles 11
to 18, were opposed by only three upstream riparian countries: Ethiopia (Nile Basin),
Rwanda (Nile Basin) and Turkey (Tigris-Euphrates Basin) (Birnie & Boyle, 2002, p. 319).
Article 3 of the ILA’s Complementary rules applicable to international resources
(adopted at the 62nd conference held in Seoul in 1986) states that:
when a basin State proposes to undertake, or to permit the undertaking of, a project that
may substantially affect the interests of any co-basin State, it shall give such State or
States notice of the project. The notice shall include information, data and specifications
adequate for assessment of the effects of the project. (Manner & Metsälampi, 1988)
Principles of Cooperation and Information Exchange
It is the responsibility of each riparian state of an international watercourse to cooperate
and exchange data and information regarding the state of the watercourse as well as
current and future planned uses along the watercourse (Birnie & Boyle, 2002, p. 322).
These principles are recommended by the 1966 Helsinki Rules (Articles XXIX, XXXI),
Principles of Transboundary Water Resources Management and Ganges Treaties
163
while Articles 8 and 9 of the UN Watercourses Convention make it an obligation. The
1944 USA-Mexico Water Treaty, the 1964 Columbia Treaty between USA and Canada,
the 1960 Indus Waters Treaty (Articles VI –VIII), the ILA’s 1982 Montreal rules on
water pollution in an international drainage basin (Article 5), the 1995 SADC protocol
on shared watercourse systems (paragraphs 4 and 5 of Article 2, Article 5), the
1995 Mekong River basin agreement (Articles 24 and 30), as well as the 2002
framework agreement of the Sava River basin (Articles 3 and 4), all incorporate these
principles.
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Peaceful Settlement of Disputes
This principle advocates that all states in an international watercourse should seek a
settlement of the disputes by peaceful means in case states concerned cannot reach
agreement by negotiation. This principle has been endorsed by most modern international
conventions, agreements and treaties, e.g. the 1966 Helsinki Rules (Article XXVII) and
1997 UN Watercourses Convention (Paragraph 1, Article 33). It has also been incorporated
in major treaties in recent years, e.g. the 1960 Indus Waters Treaty (Article IX, Annexure F
and Annexure G), the 1995 SADC protocol on shared watercourse systems (Article 7),
the 1995 Mekong River basin agreement (Articles 34 and 35), and the 2002 framework
agreement of the Sava River basin (Articles 22– 24).
Analysis of the Water Treaties in the Ganges Basin
The history of water cooperation along the Ganges basin dates back to 29 April 1875 after
the signing of the Agreement between the British Government and the State of Jind, for
regulating the supply of water for irrigation from the western Jumna canal (amended on
24 July 1892). On 29 August 1893, the Agreement Between the British Government and
the Patiala State Regarding the Sirsa Branch of the Western Jumna Canal was signed
(IWLP, 2008; Beach et al., 2000, p. 168).
Since that time, six bilateral agreements/treaties and three Memoranda of
Understandings (MoU)2 have been signed between the riparian countries. The agreements/
treaties are as follows:
(1) 1920 Agreement between His Majesty’s Government of Nepal and India (the then
British Empire) for constructing the Sarada Barrage on the Mahakali River.
(2) Agreement between His Majesty’s Government of Nepal and the Government of
India concerning the Kosi Project, 25 April 1954. The treaty was subsequently
amended on 19 December 1966.
(3) Agreement between His Majesty’s Government of Nepal and the Government of
India on the Gandak Irrigation and Power Project, signed at Kathmandu,
4 December 1959. The treaty was subsequently amended on 30 April 1964.
(4) Agreement between the Government of the People’s Republic of Bangladesh
and the Government of the Republic of India on sharing of the Ganges waters
at Farakka and on augmenting its flows, signed on 5 November 1977 at
Dhaka.
(5) Treaty between Nepal and India concerning the integrated development of the
Mahakali River including Sarada Barrage, Tanakpur Barrage and
Pancheshwar Project, 12 February 1996, signed at New Delhi.
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M. M. Rahaman
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(6) Treaty between the Government of the People’s Republic of Bangladesh and
the Government of the Republic of India on sharing of the Ganga/Ganges
waters at Farakka, signed on 12 December 1996 at New Delhi.
Abbas (1984), Beach et al. (2000), Biswas & Uitto (2001), Crow et al. (1995), Rahaman
(2008) and Salman & Uprety (2002) elaborately describe the sources of water conflicts
between the riparian countries of the Ganges basin and analyse the complex history behind
these agreements. Addressing these issues is beyond the scope of this paper. This section
concentrates on the analysis of the content of the 1996 Mahakali Treaty between Nepal
and India and the 1996 Ganges Treaty between India and Bangladesh to find out to what
extent the principles of transboundary water resources management are addressed in
these treaties.3 These two latest treaties of the Ganges basin were selected for this
study as both were signed during the negotiation process of the UN Watercourses
Convention (1997) and are valid for a significantly longer period, 75 years and 30 years
respectively.
Mahakali Treaty (1996)
Mahakali is a principal tributary of the Ganges and border river between Nepal and India.
This river is also known as Sarada in India. The Mahakali Treaty was signed on 12
February 1996 (it came into force on 5 June 1997) between Nepal and India concerning the
integrated development of the Mahakali River, including Sarada Barrage, Tanakpur
Barrage and the Pancheshwar multipurpose Project. Of these, Sarada Barrage and
Tanakpur Barrage were completed in 1920 and 1992 respectively. This Treaty absorbed
the regime established by the 1920 Sarada agreement (Article 1) and 1991 MoU and 1992
Joint communiqué for Tanakpur Barrage (Article 2). Article 3 of the Treaty endorsed the
idea of constructing Pancheshwar Multipurpose Project (PMP). Hence, from a structural
viewpoint, the Mahakali Treaty combines three distinct treaties related to the water
sharing of the Mahakali River, the Sarada agreement, the Tanakpur agreement and the
PMP (Uprety & Salman, 1999, p. 313). The Treaty is valid for 75 years from the date it
came into force (Article 12, paragraph 2).
Article 9 of the Mahakali Treaty endorsed the principles of information exchange and
cooperation. Article 9(1) forms the Mahakali River Commission for information
exchange, cooperation and implementation of the Treaty. Paragraphs 2 to 6 of the Article 9
set out clear guidelines for the formation of the Mahakali River Commission, as well as
jurisdiction of the Commission. According to Articles 9(2) and 9(4), the Commission shall
be composed of equal number of the representatives from both Parties and its expenses
shall be borne equally by both the Parties. According to Article 9(3), the functions of the
Commission include information exchange and inspection of all structures included in
the Treaty, make recommendations for the implementation of the Treaty provisions,
expert evaluation of projects, monitor and coordinate plan of actions, examine any
differences arising between the Parties concerning the interpretation and application of the
Treaty.
The Treaty approves the principles of equitable and reasonable utilization, the equitable
distribution of benefits, and an obligation not to cause significant harm. In defining the
jurisdiction of the Mahakali River Commission, Article 9(1) states: “the Commission
shall be guided by the principles of equality, mutual benefit and no harm to either Party”.
Principles of Transboundary Water Resources Management and Ganges Treaties
165
The provisions of Articles 7 and 8 also acknowledge an obligation not to cause harm.
Article 7 reads:
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In order to maintain the flow and level of the waters of the Mahakali River, each Party
undertakes not to use or obstruct or divert the waters of the Mahakali River adversely
affecting its natural flow and level except by an agreement between the parties.
This means each Party has an obligation to maintain the natural flow of the river. However,
this obligation does not preclude the use of the waters by the local communities living on both
sides of the Mahakali River, not exceeding 5% of the average annual flow at Pancheshwar
(Article 7). Article 8 acknowledges the right of both Parties to independently plan, survey,
develop and operate any work on the tributaries of the Mahakali River as long as such use
does not affect the rights of both Parties stipulated in Article 7. Thus, together Articles 7 and
8, and 9(1) accept the theory of limited territorial sovereignty, where each Party has the right
to use the water as long as it does not preclude the rights and interests of the co-riparian.
However, the terms ‘no harm’ and ‘adverse effect’ are not defined in the Treaty and thus
leaves room for controversy (Salman & Uprety, 2002, p. 108).
Article 6 of the Treaty indirectly restricts unilateral projects along the Mahakali River.
It states:
Any project, other than those mentioned herein, to be developed in the Mahakali
River, where it is a boundary river, should be designed and implemented by an
agreement between the Parties on the principles established by this Treaty.
Hence, it is an obligation for either Party to reach an agreement before commencing any
project on the Mahakali River. It makes it binding to both Parties to obey the principles of
the Mahakali Treaty, inter alia principles of equality, benefit sharing and no harm adopted
in Articles 9(1), 8 and 7. Ultimately, it discourages the unilateral development of the river
and approves the principles of cooperation, consultation and notification.
Article 3 sets the principles for the design and implementation of the Pancheshwar
Multipurpose Project in the Mahakali River. Article 3(1) states:
The Project shall, as would be agreed between the Parties, be designed to produce
the maximum total net benefit. All benefits accruing to both the Parties with the
development of the Project in the forms of power, irrigation, flood control etc., shall
be assessed.
Article 3(3) again states: “The cost of the Project shall be borne by the Parties in
proportion to the benefits accruing to them”. Thus, assessing benefits accruing to both
Parties from the Pancheshwar Multipurpose Project and sharing the cost in proportion to
the benefits, in turn emphasizes the notion of sharing of benefits from water uses rather
than sharing of water. The principles adopted in Articles 3(1) and 3(3) together with the
principle of mutual benefit adopted in Article 9(1) acknowledge the principle of equitable
utilization of benefits. Article 10 states that both Parties may form joint entities for the
development, execution and operation of new projects, including PMP in the Mahakali
River for their mutual benefits.
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M. M. Rahaman
Article 11 of the Treaty provides a detailed dispute resolution and arbitration mechanism
if the disputes are not resolved by the Mahakali Commission under Article 9. According to
Article 11(2), an arbitration tribunal composed of three arbitrators conducts all arbitration.
One arbitrator must to be nominated by Nepal, one by India, with neither country able to
nominate its own national, and the third arbitrator is to be appointed jointly, who, as a
member of the tribunal, shall preside over such tribunal. In the event that the Parties are
unable to agree upon the third arbitrator within 90 days after receipt of a proposal, either
Party may request that the Secretary-General of the Permanent Court of Arbitration at The
Hague appoint an arbitrator who shall not be a national of either country.
The inclusion of the Permanent Court of Arbitration in this Article strengthens the
dispute resolution mechanism of this Treaty. Article 11(3) makes the decision of the
arbitration tribunal as final, definitive and binding to both Parties. However, Salman &
Uprety (2002, p. 115) observe that the Mahakali Treaty is silent regarding the venue of
arbitration, the administrative support of the arbitration tribunal, and the remuneration and
expenses of its arbitrators. According to the Article 11(4), these issues shall be agreed
upon by an exchange of notes between the Parties. Moreover, the Parties may agree on
alternative procedures of settling differences arising under the Treaty through an exchange
of notes.
Giordano & Wolf (2003, p. 170) point out that incorporating clear mechanisms for
dispute resolution is a precondition for effective long-term basin management. In many
river basins, a lack of detailed conflict resolution mechanisms makes the treaty ineffective.
Article 11 of the Mahakali Treaty offers a good example for dispute settlement in
international rivers. It provides relatively elaborate and advanced dispute resolution
mechanisms (cf. Uprety & Salman, 1999, p. 338).
Ganges Treaty (1996)
After the commissioning of the Farakka Barrage along the mainstream of the Ganges in
1975 and subsequent conflict regarding the water shortage in downstream Bangladesh,
Bangladesh and India signed two treaties (1977 and 1996) and two MoU (1983 and 1985)
for sharing the Ganges waters at Farakka.
On 12 December 1996, the two governments signed the most recent Treaty for sharing
the Ganges waters at Farakka during the dry season (1 January to 31 May). This Treaty is
valid for 30 years. Article II, Annexure I and II of the 1996 Ganges Treaty establishes the
formula for water sharing of the Ganges at Farakka during the dry season. Annexure II
provides an indicative schedule of the sharing arrangement based on 40 years (1949 –88),
a 10-day period average availability of water at Farakka. Salman (1998), Salman & Uprety
(2002, pp. 170– 183) and Tanzeema & Faisal (2001) provide detailed analyses of the water
sharing arrangement included in the Ganges Treaty.
Articles IV to VII of the Treaty establish the Joint Committee and its jurisdiction for
monitoring the Treaty and exchanging data and information. The Joint Committee,
consisting of an equal number of representatives nominated by the Parties, is entrusted to
observe and record at Farakka the daily flows below Farakka Barrage as well as at
Hardinge Bridge (Article IV). Article VI requires the Joint Committee to submit all data
collected by it and an annual report to both governments. According to Article VII, the
Joint Committee is responsible for implementing the arrangement of the Treaty and
examining any difficulty arising out of the implementation of the arrangements and of the
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Principles of Transboundary Water Resources Management and Ganges Treaties
167
operation of the Farakka Barrage. The Preamble and Article VIII recognize the need to
cooperate to find a solution to the long-term problem of augmenting the flow of Ganges
during the dry season. These Articles approve the principle of cooperation and information
exchange.
The Preamble of the Treaty notes that both countries wish to share the waters of
international rivers and optimally utilize the water resources of the region in the field of
flood management, irrigation, river basin development and hydropower generation for the
mutual benefit of the people of the two countries. Although oblique, the inclusion of these
issues could result in the cooperation of other water related issues and hence promote
overall Ganges basin development (Uprety & Salman, 1999, p. 342).
Articles IX and X of the Treaty adopted the principles of equitable utilization and an
obligation not to cause harm. Article IX states that:
Guided by the principles of equity, fairness and no harm to either Party, both the
Governments agree to conclude water sharing, Treaties/Agreements with regard to
other common rivers.
On the other hand, Article X mentions:
The sharing arrangements under this Treaty shall be reviewed by the two
Governments at five years interval or earlier, as required by either Party and needed
adjustments, based on principles of equity, fairness and no harm to either Party made
thereto, if necessary.
Thus, both Articles are very noteworthy, as they endorsed the principles of equitable and
reasonable utilization and no harm or theory of limited territorial sovereignty.
Article IX is one of the strongest legal instruments included in the 1996 Ganges Treaty.
The provision of this Article ensures the commitment of future cooperation for the other
53 common rivers between Bangladesh and India. It ultimately discourages unilateral
development on the other common river and agreed to conclude water sharing Treaties/
Agreements on the basis of the principles of equity, fairness and no harm to either Party.
Thus in turn, Article IX acknowledges the necessity of coordinated management of the
watercourses and the theory of limited territorial sovereignty.
Unlike the 1996 Mahakali Treaty, the 1996 Ganges Treaty does not include clear
dispute resolution and arbitration mechanisms (cf. Salman & Uprety, 2002). The preamble
of the Treaty mentions that both Parties wish to find a fair and just solution without
affecting the rights and entitlements of either country. Article VII states that if the Joint
Committee fails to resolve conflicts arising out of the implementation of the Treaty, it
should be referred to the Indo-Bangladesh Joint River Commission. If the difference or
dispute still remains unresolved, it should be referred to the two governments, which
would meet urgently at the appropriate level to resolve it by mutual discussion. What level
of government it refers to and what the timeframe is for the settlement of disputes are not
specified in the Treaty. In addition, the Treaty does not bind any Party to resolve the
dispute if a disagreements persist (McGregor, 2000). Hence, the Treaty establishes
political means, not arbitration, to resolve any dispute arising from the implementation of
the Treaty. Undoubtedly, the absence of arbitration mechanisms makes it a less effective
legal instrument than the Mahakali Treaty (Uprety & Salman, 1999, pp. 336 –338).
168
M. M. Rahaman
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UN Watercourses Convention and Ganges Riparian States
In 1970, the United Nations (UN) General Assembly commissioned the International Law
Commission (ILC) to draft a set of Articles to govern non-navigational uses of
transboundary waters. After 21 years of extensive work, in 1991 the ILC prepared the draft
text of the UN Watercourses Convention (Biswas, 1999, p. 438). After considerable
discussions during 1991 to 1997 on the draft prepared by the ILC, on 21 May 1997, the UN
General Assembly adopted the UN Watercourses Convention. This Convention
incorporated the principles of transboundary water resources management, building on
the 1966 Helsinki Rules (UNDP, 2006:218) (Table 1).
Upon the request of Turkey, the General Assembly of the United Nations called for a
vote on the resolution 51/229 adopting the UN Watercourses Convention. Out of 133
nations, 103 nations voted in favour, 27 nations abstained and three nations voted against
the Water Convention (IWLP, 2008). Bangladesh and Nepal both voted in favour of the
Convention and India abstained.
According to Article 36(1) of the Convention, 35 instruments of ratification, approval,
acceptance or accession are required to bring the Convention into force.4 Even though 103
nations voted in favour of adopting the Convention in the General Assembly, as of 18
August 2008, only 16 countries had ratified or consented to be bound (acceptance,
approval or accession) by the UN Watercourses Convention.
Among the Ganges riparian countries, Bangladesh and Nepal both voted in favour of
adopting the Convention, but as of 11 August 2008, none of the countries ratified or
acceded to the Convention. China voted against the Convention and in the case of India it
was clear from the beginning that the country was highly unlikely to ratify the Convention
because it abstained during the vote adopting the Convention. India officially noted four
objections regarding the Convention. These are as follows (Chimni, 2005, pp. 99– 101):
(1) Article 3 of the Convention “failed to adequately reflect the principle of freedom,
autonomy, and the rights of States to conclude international agreements on the
international courses without being fettered by the present Convention”.
(2) Article 5, dealing with equitable and reasonable utilization and participation,
“has not been drafted in a clear and unambiguous terms stating the right of State
to utilize an international watercourse in an equitable and reasonable manner and
Article 5 in the present form is vague and difficult to implement”.
(3) Article 32, dealing with non-discrimination, “presupposes political and economic
integration among States of the region. As all watercourse regions are not so
integrated, this provision will be difficult to implement in certain regions. Hence,
it did not merit . . . inclusion in the Convention”.
(4) Regarding Article 33, dealing with peaceful settlement of disputes, India asserted
“any procedures for peaceful settlement of disputes should leave the procedure to
the parties to the dispute to choose freely and by mutual consent a procedure
acceptable to them”.
The valid and immediate question that arises is: why have Bangladesh and Nepal not ratified
or acceded to the Convention, even though both voted for the adoption of the Convention?
It is difficult to answer this question in the absence of any official clarifications, statements
and, unlike India, objections against a particular Article or Articles of the Convention by the
governments of Bangladesh and Nepal.
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The same question is also relevant for other 85 countries that voted to adopt the
Convention but did not become Parties to the Convention (as of 18 August 2008).
To answer this question, Salman (2007a) analysed different Articles of the Convention and
statements from the delegations of various countries during the discussion of the
Convention by the Working Group and UN General Assembly, and identified several
reasons for the reluctance of different states to become Parties to the UN Convention.
Addressing these issues in detail are beyond the scope of this paper.
Salman (2007a) identifies and discusses six areas of different interpretations and
misconceptions of the provisions of the Convention that have contributed to the slow
pace of the signing, ratification of, and accession to the Convention. These are briefly
summarized below (Salman, 2007a, pp. 8 – 12):5
(1) Different understanding by the riparian states about the manner in which the
Convention has dealt with the relationship between equitable and reasonable
utilization (Articles 5 and 6) and the obligation not to cause significant harm
(Article 7). Due to this reason, for many states there is considerable ambiguity
as to which of the two principles prevails. For many upstream states, which
tend to favour the principle of equitable and reasonable utilization, a specific
and separate Article dealing with the ‘obligation not to cause significant harm’
(Article 7) is equating it with the principle of equitable and reasonable
utilization. Nevertheless, among the legal experts, the prevailing view is that
the Convention subordinated the obligation not to cause significant harm
(Article 7) to the principle of equitable and reasonable utilization (Articles 5
and 6) (Eckstein, 2002, p. 85; Salman, 2007a, pp. 8– 12, 2007b, pp. 631– 634).
The downstream states, which normally tend to support the no harm rule,
perceive that the Convention is biased to the upstream states. Yet, according to
Salman (2007a, p. 9), this should not be viewed as favouring upstream states.
The perception by the upstream states that the Convention is biased in favour of
downstream states and, vice versa, is a major reason for reluctance to become
Party to the Convention. However, these two perceptions should not be viewed
as a unified position of either upstream states or downstream states.
(2) The perception by the upstream states that the notification process included
in the Convention (Articles 12– 18) favours downstream states and is an
exclusive right of the lower riparians because only upstream riparians can cause
harm to downstream riparians.
(3) Different understanding concerning the manner in which the Convention dealt
with existing agreements (Article 3). Riparian states with existing agreements
believe that the Convention does not fully recognize those agreements. On the
other hand, riparian states that are excluded from the existing agreements believe
that the Convention should have subjected those agreements to the provisions of
the Convention and should have required consistency between the two.
(4) Different understanding of the dispute settlement provisions of the Convention
(Article 33). Some states perceive that they are too weak because they do not
provide any binding mechanism. Conversely, some states view the fact-finding
Commission’s provision (Article 33.4) is a binding and compulsory method, and
have argued that this provision interferes with a nation’s sovereign right to
negotiate dispute settlement procedures by the Parties concerned.
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M. M. Rahaman
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(5) A misunderstanding about the expanded definition of the term ‘Watercourse
State’ (Article 2.c) to include “regional economic integration organizations”
(Articles 2.c and 2.d). Some states perceive that this provision allows
members of one such organization, which are not a riparian of a particular
watercourse, to become riparians simply because the organization has become
a member.
(6) The apprehension about the loss of sovereignty over shared waters.
The internationally accepted transboundary water management principles summarized in
this paper, which are also incorporated in the UN Watercourses Convention, could serve
as guiding principles for the creation of effective transboundary water resources
management involving riparian countries of shared watercourses (cf. Eckstein, 2002, p.
89; Chimini, 2005, p. 101; Rahaman, 2009; Salman, 2007a). It is also important to
recognize that their individual importance, scope, relevant factors, procedures and forms
of joint management vary from country to country, depending on the unique
characteristics of each of the world’s shared watercourses as “one size certainly does not
fit all” (cf. Philips et al., 2006, pp. 135–140).
Eckstein (2002, p. 89) notes that the process of legal evolution is a dynamic process that
often takes years to develop. He mentions that the Convention’s impact and effectiveness
is not particularly dependent upon its ratification, but rather is subject to the degree to
which different states incorporate the Convention’s guiding principles as a framework for
more specific bilateral and regional agreements and treaties, e.g. the Ganges and Mahakali
Treaties (see Tables 1 and 2).
A Discussion on the Treaties
It should be mentioned that, unfortunately, neither the Ganges Treaty nor Mahakali
Treaty mention the definition and scope of the term ‘no harm’ and thus leaves room for
controversy. Both Treaties reaffirm the commitment for cooperation in the development
of water resources. The dispute settlement mechanism included in Article 11 of the
Mahakali Treaty is relatively elaborate and advanced that could provide a guideline
for future cooperation along the basin. Quite positively, the present study shows that
both Treaties incorporate major transboundary water resources management principles
(Table 2).
Table 2. Transboundary water resources management principles and relevant Articles 1996
Ganges and Mahakali Treaties
Principles
Ganges Treaty (1996)
Mahakali Treaty (1996)
Reasonable and equitable
utilization
Not to cause significant harm
Cooperation and information
exchange
Notification, consultation and
negotiation
Peaceful settlement of disputes
Articles IX, X
Articles 3, 7, 8, 9
Articles IX, X
Preamble, Articles IV-VII,
VIII, IX
Article IV-VII
Articles 7, 8, 9
Preamble, Articles 6, 9, 10
Preamble and Article VII
Articles 9, 11
Articles 6, 9
Principles of Transboundary Water Resources Management and Ganges Treaties
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Conclusions
This paper analysed two key bilateral treaties of the Ganges River basin, the 1996
Mahakali Treaty between Nepal and India and the 1996 Ganges Treaty between India
and Bangladesh, in relation to the principles of transboundary water resources
management. The study shows that both treaties incorporated the principle of equitable
and reasonable utilization, an obligation not to cause significant harm, principles of
cooperation, information exchange, notification, consultation and the peaceful
settlement of disputes (see Table 2). The inclusion of these internationally accepted
transboundary water resources management principles in two bilateral treaties,
concluded by three riparian countries, Nepal, India and Bangladesh, offers plenty of
common ground and a window of opportunity to foster coordinated and sustainable water
resources development and management throughout the region. These principles could
serve as guiding principles for water based collaborative development endeavours in
the region.
Acknowledgements
The author gratefully acknowledges the financial support of the Graduate School for Real Estate,
Construction and Planning for this study. He also wishes to thank Professor Olli Varis and Professor Pertti
Vakkilainen for their constructive comments, guidance and suggestions. Special thanks are due to Professor Ari
Jolma, Salman M. A. Salman and the Water Resources Laboratory Staff from the Helsinki University of
Technology.
Notes
1. Biswas (1999, pp. 439 –440) notes that none of these factors mentioned in Article 6(1) of the UN Watercourses
Convention can be defined precisely as they are broad and general. Accordingly, these can be defined and
quantified in a variety of different ways.
2. The agreement concluded at the administrative level is known as the Memorandum of Understanding (Birnie &
Boyle, 2002, p. 13).
3. For a comprehensive analysis of the Mahakali and Ganges Treaties, see Salman & Uprety (2002).
4. The Convention was open for signature from 21 May 1997 until 20 May 2000 (Article 34). States or regional
economic integration organizations, however, may continue to ratify, accept, approve or accede to the
Convention indefinitely (Article 36).
5. For detailed analyses of these different interpretations, see Salman (2007a).
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